Fifty legal scholars in the United States have written an open letter to the Senate urging them to use their rights under Article I of the Constitution to force the Obama Administration to submit the Anti-Counterfeiting Trade Agreement (ACTA) to Congress from approval. Under the U.S. Constitution the Senate must approve all International treaties before they can be signed by the United States government. To avoid submitting it to the Senate for approval, the administration said that it was not required to approve it because it was an "executive agreement." Now officials are saying that the Senate gave the Administration approval to sign the treaty when it passed the 2008 PRO-IP Act.

The change in position came in a response (dated March 16) sent to Senator Ron Wyden, Chair of the Senate Finance Committee’s Trade Subcommittee, who inquired why the Administration had not submitted the treaty to the Senate prior to signing on to it. Department of State Legal Advisor Harold Koh said that the treaty was not a "sole executive agreement" as indicated by the USTR, but was instead already authorized by the 2008 law.

The letter (PDF) sent to the United States Senate Committee on Finance from a group of law professors released today challenges the assertions made in Koh’s letter to Senator Wyden, concluding that PRO-IP did not authorize ACTA and that Congressional approval of the final text of ACTA is necessary to bind the U.S. to the agreement.

"The larger part of ACTA contains dozens of pages of new international law requirements on the shape and scope of domestic intellectual property enforcement legislation, including what types of infringement must be addressed through criminal law, when third party intermediaries may be civilly and criminally liable for infringement by others, and the scope of damages and other remedies that must be available for different classes of infringement," the letter states. "Regardless of whether ACTA requires changes in US law (many claim that it does), these are matters subject to the legislative power vested in Congress, not in the sole executive province of the President."

The letter goes on to detail why the 2008 PRO-IP Act does not delegate power to the President to ratify ACTA without further Congressional approval, as is required for trade agreements.

"First, the plain language of Section 8113(a) of the PRO-IP Act does not authorize USTR to bind the US to any international agreement. Rather, the section merely describes the purposes of a ‘Joint Strategic Plan against counterfeiting and infringement,’ to be coordinated among multiple agencies by the Intellectual Property Enforcement Coordinator (IPEC). The purposes of the Plan include ‘working with other countries to establish international standards and policies for the enforcement of intellectual property rights.’ Nowhere in Section 8113 does the PRO-IP Act mention the negotiation of international agreements. Rather, subsection (f), which describes specific means for ‘enhancing enforcement efforts of foreign governments,’ requires only ‘programs to provide training and technical assistance to foreign governments for the purpose of enhancing the efforts of such governments to enforce laws against counterfeiting and infringement.’ Read in its context, the language cited by Koh as justifying ACTA does no more than require a multi-agency plan to provide technical assistance to foreign governments. Indeed, the cited passage is not addressed to USTR."

The letter notes that the PRO-IP Act was not passed until 2008, while the negotiations began in 2007, which means that no approval was ever given to ACTA because the Act was not in effect.

"The ACTA negotiation began in 2007. PRO-IP was not passed until 2008, and was passed at a time Congress was being told that ACTA would be entered as a sole executive agreement – requiring no congressional approval at all. The administration did not seek, and Congress has not given, ex ante authorization to bind the US to ACTA."

Finally the letter points out that ACTA, like any other international treaty, must follow the process of law - in this case the process laid out by the Constitution, and not the executive power in a given country. In other words, the agreement can't be ratified simply by the President signing it.